2435396 (Refugee)

Case [2025] ARTA 1102

2435396 (Refugee) [2025] ARTA 1102 (3 January 2025)

Decision and
Reasons for Decision

Respondent:

Minister for Immigration and Multicultural Affairs

Tribunal Number:

2435396

Tribunal:

General Member F Robertson

Date of written statement:

3 January 2025

Place:

Perth

Decision:

The Tribunal affirms the decision under review

Statement made on 03 January 2025 at 3:09pm

CATCHWORDS

REFUGEE – protection visa – Nigeria – religion – Christian – Catholic – race – Igbo – applicant convicted of drug offences in Australia – physical assault – threats from Boko Haram – fear of killing – sanctions against citizens returning to Nigeria with drug convictions overseas – fear of extortion – return visits to Nigeria – decision under review affirmed

LEGISLATION

Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 198AAA, 499

Migration Amendment Act 2024

Migration Regulations 1994, Schedule 2

CASES

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83

ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496

DIJ16 v Minister for Home Affairs [2019] FCA 1038

DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1

EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804

EGW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1177

Fox v Percy [2003] HCA 22; 214 CLR 118

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 1997 CLR 559

NAHI v Minister for Immigration [2004] FCAFC 10

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347

Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816

W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

Statement of reasons

INTRODUCTION

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth) (the 'Act').

  2. The applicant, [an age]-year-old male from Nigeria, has applied for a review of that decision. For these reasons, the decision under review should be affirmed.

    CRITERIA FOR THE GRANT OF A PROTECTION VISA

  3. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of…

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AGLC
2435396 (Refugee) [2025] ARTA 1102
Case
[2025] ARTA 1102
Decision Date

CaseChat Overview and Summary

The case involves an applicant from Nigeria who applied for a protection visa in Australia, asserting that he faced a real chance of serious harm in Nigeria due to his Christian faith and drug-related convictions. The decision under review was made by a delegate of the Minister for Home Affairs, and the matter was heard in the Administrative Appeals Tribunal (AAT). The applicant claimed he faced persecution and serious harm if returned to Nigeria because of his Christian faith and drug-related convictions. The legal issues before the court were whether the applicant met the criteria for a protection visa under the Migration Act 1958 (Cth) and, if not, whether he qualified for a complementary protection visa.

The court examined the applicant’s claims and the evidence provided, including the applicant's history of returning to Nigeria and his experiences of alleged attacks. The delegate concluded that there was no evidence to indicate that the applicant would be treated differently or harmed in Nigeria due to his Christian faith or drug convictions. The court found that while the Nigerian security situation is complex, the applicant's profile did not expose him to a higher risk of harm than the general population in his home region. Furthermore, the court noted that Decree 33 of the National Drug Law Enforcement Agency Act, which the applicant feared would result in his arrest and imprisonment, was not actively used to prosecute Nigerians returning with drug convictions.

The court held that the applicant did not meet the criteria for a protection visa as there was no real chance of persecution for reasons of religion or serious harm due to his drug convictions. The court also found that there were no substantial grounds for believing that the applicant would suffer significant harm if returned to Nigeria, and therefore, he did not meet the complementary protection criterion either.

The final orders affirmed the decision of the delegate to refuse the applicant's application for a protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

If a person is found not to meet the ‘refugee criterion’ in s 36(2)(a) of the Act, they may satisfy the 'complementary protection criterion' under s 36(2)(aa). That inquiry is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a 'necessary and foreseeable consequence' of return to the receiving country.[7] 'Significant harm’ is exhaustively defined in s 36(2A) of the Act.[8][7] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).[8] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).CONSIDERATION OF CLAIMS AND EVIDENCE The applicant was born in [specified year] in Umuahia, Abia State, Nigeria. In December 2009, he was granted a Provisional Spouse visa and travelled to Australia in March 2010. He was granted a Spouse visa in November 2011. The applicant's [siblings] live in Aba, Abia State, and his father lived in Aba before his death in July 2013. The applicant left Australia on three occasions, last returning in February 2014. The applicant's first return trip to Nigeria was in August 2012. The applicant's evidence at the hearing was that this trip was to renew his passport and because his father was ill. He returned to Australia in September 2012. The second trip was in May 2013 and the applicant returned to Australia in July 2013. His evidence was that he returned this time because his father was ill. I note that his father died shortly after the applicant returned to Australia. As for the third trip, which occurred in December 2013 the applicant's evidence was that he returned to Nigeria for his father's funeral before he returned to Australia in February 2014. The applicant was arrested in April 2014 and charged with offences related to the importation of commercial quantities of border-controlled drugs. The applicant was convicted of those offences and sentenced to a term of immediate imprisonment.Protection visa application The applicant applied for a protection visa in August 2024. That application claimed that he faced a real chance of serious harm in Nigeria because of his Christian faith and because of his convictions for drug-related offences in Australia. The applicant was not interviewed in connection with his application. However, the delegate invited the applicant to provide more information about his claims. The applicant responded on 31 August 2024, stating that he was a Catholic renewal minister in Aba, Abia State, who would evangelise in open gatherings and conduct Bible studies. He claimed that [in] November 2008, he took a bus to Owerri, Imo State, and upon arrival, he and the people accompanying him were attacked by a group who tore up his Bible and assaulted him. He stated that the right side of his head and lips were cut with a machete, and he experienced other facial injuries as well. He claims he was hospitalised as a result. The applicant also provided a medical report dated [in] December 2008 from the [Medical Centre 1] in Owerri, Imo State in support of his claims.Delegate's decision

Decision

Reasons for decision

The applicant responded on 31 August 2024, stating that he was a Catholic renewal minister in Aba, Abia State, who would evangelise in open gatherings and conduct Bible studies. He claimed that [in] November 2008, he took a bus to Owerri, Imo State, and upon arrival, he and the people accompanying him were attacked by a group who tore up his Bible and assaulted him. He stated that the right side of his head and lips were cut with a machete, and he experienced other facial injuries as well. He claims he was hospitalised as a result. The applicant also provided a medical report dated [in] December 2008 from the [Medical Centre 1] in Owerri, Imo State in support of his claims.Delegate's decision The delegate did not accept that the applicant faces a real chance of serious harm in Nigeria for the reasons claimed by him or for any other reason. As to the claims related to the applicant's religion, the delegate concluded: While I accept that the Nigerian political and security situation is complex with particular challenges in multireligious and multiethnic regions, I consider that there is no evidence before me to indicate the applicant would be treated discriminatorily or mistreated and harmed in his home area of Abia State where Christianity is a majority religion and Igbo are the majority ethnicity. In addition, country information indicates that the Nigerian government regularly undertakes security operations against Islamist groups throughout the country. There is no information available to indicate that the authorities allow Islamist groups to persecute Christians freely without repercussions.While I recognise that multifaceted security challenges exist in Nigeria, I note that the applicant does not have a profile that would expose him to a higher risk of harm than the general Igbo Christian population in his home area. The applicant did not have a profile of adverse interest to the Nigerian authorities or anyone else before he left the country. There is no information before me to indicate that the applicant has acquired a risk profile of interest since he left Nigeria. Having weighed the information before me, I do not find the applicant would face a real chance of harm in the foreseeable future for reasons relating to his Igbo Christian and Biafran profile if he were to return to his home region in Abia State, Nigeria.I have considered the applicant's claims and find they do not give rise to a real chance of serious harm. Accordingly, I am not satisfied that the applicant faces a real chance of serious harm if he is returned to Nigeria. The delegate also dealt with the applicant's claims relating to his convictions. In doing so, the delegate referred to information included in the Department of Foreign Affairs and Trade ('DFAT') Country Information Report for Nigeria[9] and in a country information report by DFAT, dated 22 January 2024, specifically on ‘Section 22’ or 'Decree 33' as it is sometimes known (‘Section 22 CIR’). Relying on that country information, the delegate concluded: The applicant claimed that as a Nigerian with an overseas drug conviction, he will be subject to immediate arrest and a five year jail term if he is returned to Nigeria.I note that the 2020 DFAT country information report for Nigeria states that Nigerian citizens returning from overseas with a criminal record can be charged under Decree 33 of the National Drug Law Enforcement Agency Act (1990). Decree 33 provides for the prosecution of returning to Nigeria with criminal convictions from overseas, including those with drug convictions and other serious crimes (including money laundering, fraud, armed robbery and rape). The minimum sentence under Decree 33 is five years’ imprisonment. In practice, the Nigerian government has rarely given effect to Decree.According to DFAT, the last instance of someone being charged under Section 22/Decree 33 of the National Drug Law Enforcement Agency Act (1990) dates back to 2003. The National Drug Law Enforcement Agency has not sought to apply the law since this time and, in line with commitments made under international counter narcotic agreements, is in favour of its repeal.The country information available indicates that Nigerian Nationals with overseas convictions are not subject to mandatory arrest and imprisonment upon return, and that Decree 33 is not currently applied. I consider that the country information indicates that Decree 33 is not actively used to prosecute Nigerians returning to Nigeria with convictions, including drug convictions such as the applicant’s. Considering the country information before me, I do not accept there is a real chance or a real risk that the applicant will be prosecuted because of his drug conviction in Australia if he is returned to Nigeria now, or in the reasonably foreseeable future. I am not satisfied that the applicant will suffer significant harm as defined under s36(2A) of the Act if he were returned to Nigeria. (citations omitted)[9] 'DFAT Country Information Report - Nigeria', Department of Foreign Affairs and Trade, 3 December 2020, 20201203131031 ('2020 DFAT Report').

Ratio Decidendi

Legal Principle Established

A person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.[2] Among other things, persecution must involve serious harm[3] and systematic and discriminatory conduct.[4][2] Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).[3] Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act sets out non-exhaustive examples of serious harm.[4] Migration Act 1958 (Cth), s 5J(4)(c). A fear of persecution will be 'well‑founded' if there is a 'real chance' that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.[5] A 'real chance' is a prospect that is not 'remote' or 'far‑fetched', it does not require a likelihood of persecution on the balance of probabilities.[6] [5] Migration Act 1958 (Cth), ss 5J(1)(b)-(c); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).[6] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.Complementary protection criterion If a person is found not to meet the ‘refugee criterion’ in s 36(2)(a) of the Act, they may satisfy the 'complementary protection criterion' under s 36(2)(aa). That inquiry is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a 'necessary and foreseeable consequence' of return to the receiving country.[7] 'Significant harm’ is exhaustively defined in s 36(2A) of the Act.[8][7] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).[8] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).CONSIDERATION OF CLAIMS AND EVIDENCE The applicant was born in [specified year] in Umuahia, Abia State, Nigeria. In December 2009, he was granted a Provisional Spouse visa and travelled to Australia in March 2010. He was granted a Spouse visa in November 2011. The applicant's [siblings] live in Aba, Abia State, and his father lived in Aba before his death in July 2013. The applicant left Australia on three occasions, last returning in February 2014. The applicant's first return trip to Nigeria was in August 2012. The applicant's evidence at the hearing was that this trip was to renew his passport and because his father was ill. He returned to Australia in September 2012. The second trip was in May 2013 and the applicant returned to Australia in July 2013. His evidence was that he returned this time because his father was ill. I note that his father died shortly after the applicant returned to Australia. As for the third trip, which occurred in December 2013 the applicant's evidence was that he returned to Nigeria for his father's funeral before he returned to Australia in February 2014.